WASHINGTON — With the U.S. Supreme Court deciding to hear a challenge to Ohio’s election law,
Ohio Attorney General Mike DeWine has said he has “serious concerns” about the constitutionality of
the law’s ban on false statements made with malice during an election campaign.

Although DeWine has not said he will ask the justices to invalidate the Ohio law, two years ago
in a separate case the attorney general’s office filed legal papers with a federal judge saying the
law “fails to provide adequate safeguards” against “the chilling of political speech.”

“An Ohio citizen who chooses to exercise his or her civic responsibilities by speaking out on
issues of the day may face the issuance of government subpoenas,” DeWine’s office argued in the
papers filed in February 2012 before U.S. District Judge Michael Barrett in Cincinnati.

DeWine’s office said the same person could face a ruling by the Ohio Elections Commission “
labeling her speech ‘false’ just before the election, all with the threat of criminal prosecution
in the background.”

“Our system of government depends on the willingness of citizens to enter into the political
arena and debate the issues of the day,” DeWine’s office argued.

Despite the plea from DeWine, Barrett dismissed the lawsuit, which had been filed by a
Cincinnati political-action committee in 2011. The organization had tweeted support for a ballot
issue that would have prevented Cincinnati from constructing a streetcar system. Opponents of the
ballot issue complained that the political-action committee had violated state election law by
making false statements.

The current case, also from Cincinnati, has placed DeWine in an awkward position. As the state’s
chief legal officer, he is required to defend the actions of the Ohio Elections Commission. But at
the same time, he believes the law violates the First Amendment to the U.S. Constitution.

The nation’s highest court announced Friday that it would hear a challenge to Ohio’s law by
Susan B. Anthony List, a nonprofit organization that wanted to place a billboard advertisement in
2010 criticizing Rep. Steve Driehaus’ vote for the 2010 health-care law.

When Driehaus’ attorney threatened to sue, the owner of the billboard declined to put up the
advertisement. Driehaus, a Democrat from Cincinnati, then filed a complaint with the Ohio Elections
Commission, claiming the planned advertisement violated state election law that prohibits making
false statements about a candidate.

Driehaus dropped the complaint after his loss to Republican Steve Chabot. But the Susan B.
Anthony organization asked a federal judge to intervene, arguing that Driehaus’ complaint hampered
its right to free speech.

Both a federal judge and the 6th U.S. Circuit Court of Appeals in Cincinnati rejected the
organization’s complaint. Both Cincinnati cases have been consolidated, and the high court will
hear them together.

DeWine then urged the high court not to take the case, contending that the Susan B. Anthony case
never was prosecuted. The justices rejected that plea and likely will hear oral arguments on the
Ohio law this year.

Two years earlier, in his legal filing with Barrett, DeWine warned that even if the state
elections commission “does not find probable cause, the damage is often done. The speaker is forced
to use time and resources responding to the complaint, typically at the exact moment that campaign
is peaking and his time and resources are best used elsewhere.”

“The state has constructed a process that allows its enforcement mechanisms to be used to
extract a cost from those seeking to speak out on elections, right at the most crucial time for
that particular type of speech; and if the allegations turn out to be unfounded, there is no
possibility of timely remedy,” DeWine’s office wrote.